Uplands Junior School, R (On the Application Of) v Leicester City Council & Anor

MRS JUSTICE THIRLWALL: This is an application for judicial review by the Governing Body of Uplands Junior School, a community primary school maintained by Leicester City Council in Leicester. The Governors challenge on five grounds the intervention by Leicester City Council in the running of their school. The Council intervenes pursuant to the operation of Part IV of the Education and Inspections Act 2006. The intervention began on 18 September 2013. This application was issued on 20 September 2013. An application for interim relief was made on the same day. It was refused by Jay J. He directed that there be an expedited hearing for permission inter partes. Turner J granted permission at a hearing on 16 October 2013.

The interested party, Dr Timothy Luckcock, was appointed executive headteacher of the school by the governing body in September 2011. At that time his role was to assist and support the then acting head. In February 2012 there was an Ofsted inspection. The school was graded as good. This was an improvement on its previous inspection at a date which is not currently remembered. At that time it was assessed as satisfactory. In April 2012 Dr Luckcock was appointed headteacher. The governing body and the headteacher wished to improve standards at the school still further. The aim was to make the school outstanding. A significant restructuring of the staff was announced in December 2012. That involved, I understand, the removal from post of a large number of teaching assistants and the recruitment of a number of qualified teachers. This was a restructuring with which the local authority agreed. I know not how matters were led, managed and communicated within the school, suffice it to say that the restructuring led to some unrest and unhappiness.

On 12 April 2013 a large number of staff at the school submitted a collective grievance about the headteacher and a collective complaint about the governing body to Leicester City Council. The governing body were notified of the grievance and complaint on 26 April 2013. On 3 May the headteacher lodged a grievance about members of staff with the governing body. The City Council advised the governing body to consider suspending the headteacher. The governing body did not wish to do so because they considered that there where no proper grounds for doing so.

I pause to observe that at this stage it was plain that relationships between staff and headteacher and governors were poor. It appears that relationships between the headteacher and the governing body was good. There was effectively a fissure between the governors and the headteacher on one side and the staff body on the other. At the same time standards of attainment within the school were falling.

The governing body recognised, as did the City Council, that something had to be done. They agreed jointly to commission an independent investigation. The governors make the point that the independent person appointed was not able to start for some four weeks because of objections to the investigation by the trades unions representing many, if not all, members of staff. Apparently, at a meeting on 10 June the staff representative said they would only participate in the independent investigation if the headteacher were suspended. On 11 June the City Council agreed that there were no grounds for suspending the headteacher. In the event the headteacher was not suspended and the staff co-operated in the investigation. This investigation was considered by the local authority to be an important step in the right direction.

I do not know what were the terms of reference of the independent investigator nor have I seen any part of his report. The parties agree that it is not necessary for me to do so. The investigator reported with commendable expedition. He made a number of recommendations, including that there should be disciplinary proceedings against seven members of staff including the headteacher. He also identified a significant number of training needs for the headteacher. This was on 7 July. On 11 July there was a meeting between the City Council and the governing body. The City Council agreed that seven members of staff should face disciplinary proceedings but considered that only the headteacher should be suspended at that stage. The governing body agreed that seven members of staff should face disciplinary proceedings. Following that meeting 4 members of staff were suspended, not including the headteacher. The local authority was concerned that that action had been taken before discussions between them and the governing body. It was apparent at that stage that the relationship between the governing body and the City Council was not as complete and healthy as it might have been. The local authority was concerned that the actions of the governing body did not "correlate" with the findings of the independent investigator.

Before turning to the decision under review I set out the relevant statutory framework for intervention in schools.

Section 60 of the Education and Inspections Act 2006 ("the 2006 Act") provides, so far as is relevant, that:

Subsection (7) gives to the governing body a right to make representations in writing to the Chief Inspector (Ofsted) against the warning notice. Subsection (8) requires Ofsted to consider any representation made to it and may, if it thinks fit, confirm the warning notice.

The warning notice was served on 12 July 2013. After the preliminaries it began with the following paragraph:

The second numbered paragraph rehearses the details of the meeting of 11 July, to which I have referred. It includes the following:

Paragraph 4 sets out the local authority's conclusion that there was sufficient evidence within the report to lead the governors to consider the suspension of the headteacher. The investigation had concluded “that there was a case to answer over his professional judgment and conduct for his posting on Facebook which did cause offence and was interpreted as being disrespectful.” That posting was compounded by his failure to attend at school following press interest (although it appears he was sick at the time) but he subsequently appeared on television. The local authority considered that he allowed the potential impact on his personal and professional reputation to take precedence over the well-being and operation of the school.

Subparagraph (iii):

The local authority observed that the independent investigator had made “in excess of 12 recommendations as to training requirements of the headteacher to be effective in his role”.

The letter specified the period of time (15 working days) within which the request and the notice must be complied with and explained that if there were a failure to comply the local authority would:

The governing body, who were retaining legal advisers, appealed immediately to Ofsted, as they were entitled to do. Ofsted confirmed the warning notice on 27 August 2013. In its decision letter Ofsted said:

The time for compliance, therefore, began running on 27 August 2013 and expired at midnight on 17 September 2013. I shall return later in this judgment to the details of a meeting which took place in the period between the Ofsted letter and the expiry of the compliance period.

On 18 September 2013 at 11.49am the governing body received from the City Council a letter saying that it had not complied with the warning notice. At 1.27pm the Council sent an email to the governing body stating that it had suspended the school's delegated budget. At 4.13pm they sent a further email to members of the governing body stating that they had suspended the headteacher. The Council accepted that the first two requirements of the warning notice had been complied with. The claimant had, however, failed to comply to the Council's satisfaction with the third requirement. It was that failure which rendered the school eligible for intervention. I shall return to this letter later in the judgment.

The letter of 18 September 2013 is extremely detailed. Whilst the Council accepted that the first two requirements of the warning notice had been complied with, the governing body had not informed the Council that the disciplinary meetings had been cancelled until 4 September, and then only in response to a request from the Council. The letter also pointed out that notification of compliance with the second requirement came through legal representatives at 6.30pm on 12 September. It was the Council's view that engagement and communication had been unsatisfactory. The letter reads:

Two days later this claim was issued and dealt with in the way I have already described.

Before turning to the detail of the claim and the defendant's response to it I record that in responding to direct questions from me both counsel say, and I accept, that no allegation of bad faith is made by either party against the other. Whilst on a number of occasions in the evidence it may appear to be otherwise and the claimant seemed to hint that the defendants had some motive other than the proper provision of education to the 480 children in taking the action that it has, that has not been pursued. The reality is, I suspect, that each side considers that it has better answers to the school’s problems than the other. Each has spent over £40,000 on these proceedings. At a time of squeezed local authority budgets, such expenditure can only be looked at with dismay. £80,000 could have been put to very good use in a primary school.

I turn then to the claimant's case. At the heart of this challenge is the challenge to the third requirement of the warning notice. Mr Greatorex makes three separate and interlinked points. I adopt a slightly different order from the one adopted by him. Firstly, he submits that the third requirement does not constitute an action within the meaning of the Act. Secondly, that the third requirement does not relate to any of the matters which must be set out in accordance with section 60(4)(a) of the 2006 Act. Thirdly, that the third requirement was not sufficiently specific.

As to the first point, that the third requirement does not constitute action, Mr Greatorex submits that engagement and communication do not come within the definition of action. If his narrow interpretation were correct subsection (4)(b) would have to refer to “the action or actions” which are required. Action in this context does not necessarily mean a single act, although it can do. An action plan, for example, may contain a number of actions or acts that are required. Taken together, a number of actions may be described collectively as action. That much is a matter of plain English. I am at a loss to understand why engagement and communication cannot be described as action. I so find.

I turn to the second submission. Mr Greatorex submits, correctly, that the action under subsection 4(b) must be directed at remedying the matters upon which the local authority has based its conclusions that there has been a serious breakdown (in the way the school is being managed etcetera). He further submits that because in this case the matters set out in the warning notice did not include any failure to engage and communicate with the defendant, the third requirement is not an action which comes within subsection (4)(b). That cannot be right. Subsection (4)(b) requires action which will remedy the matters identified. If improved engagement and communication with the defendant would, in the defendant's judgment, remedy the matters identified, then they are action within the meaning of 60(4)(b). The fact that the absence of engagement and communication has not been specifically referred to matters not. Mr Greatorex asks me to give consideration to the implications of the defendant's approach. He submits that if I were to uphold it as lawful it would permit a local authority to "tack on" to the end of a warning notice requirements which were not related to the matters identified within it. I do not accept that. The effect of my conclusion is no more or less than that the action must reasonably be considered by a reasonable local authority as required to remedy the matters upon which are based the conclusion that there has been a serious breakdown in the way the school is being managed. The use of the word ‘related’ imports a gloss which is not there and is not necessary.

I turn then to the third submission that ‘engagement and communication’, if I can use that as shorthand, does not sufficiently describe what is required. Mr Greatorex submits that it "falls a very long way short of achieving the required levels of clarity and the issue of compliance is entirely incapable of any sort of objective assessment or measurement". Mr Sheldon says that the words speak for themselves. Mr Greatorex accepts that and submits that the fact that the words have a clear meaning does not mean that they make clear what the claimant has to do. The exhortation or direction to engage and communicate is, he submits, simply too vague. I disagree. Engagement and communication should be at the heart of the relationship between the governing body, a maintained school and a local authority. Indeed, the initial correspondence from the claimant upon receipt of the warning notice did not suggest that there was any lack of understanding as to what was meant by the third requirement. The words are clear on their face and they are clear in their context.

At paragraph 44 of his detailed grounds of resistance Mr Sheldon submits:

I turn then to ground 2. Mr Greatorex's skeleton describes it neatly thus: “unreasonable and procedurally unfair refusal to clarify third requirement”. He submits that the only basis upon which the third requirement could possibly be said to be lawful is that it was capable of subsequent clarification. He refers me to the witness statement which sets out the repeated requests the claimant made for clarification from the defendant as to what was meant or expected by way of compliance with that third requirement. He submits that the defendant steadfastly refused to respond to any of those requests or to offer any clarification at all. This was so unreasonable as to be unlawful. It was also, he says, procedurally unfair.

The defendant relies upon the detail of the letter of 11 September in answer to this ground. Where relevant it reads:

Mr Sheldon submits that in the light of that letter the claimant is wrong to assert that it contains no meaningful indication of what was required of the governing body. I agree. It follows then that I find that the challenge at ground 2 also fails.

I turn then to ground 3. That the defendant could not reasonably conclude that the claimant had not complied with the third requirement. Mr Greatorex submits that the Council misunderstood the working of the statutory scheme. He says that provided requirements are met by the end of the compliance period, a governing body has complied, and that happened here. In my judgment, where a specific act or single action is required then, provided it is carried out before the end of the compliance period, that requirement has been complied with. Thus, it matters not in this case that compliance with the first and second requirements were part way through and towards the end of the period respectively. Those two acts or actions could have been carried out on the last day and the governing body would have complied with requirements 1 and 2. However, I remind myself that the warning notice must set out the action which the local authority requires the governing body to take. I have already made my decision in respect of the meaning of action in this context. I can see no reason of statutory construction, or indeed any reason of practical application of the statute, which requires me to find, as Mr Greatorex submits I must, that this does not permit the local authority to require action at an earlier stage or during the course of the 15 day period. In answer to a question from me, he said that so far as the third requirement was concerned (assuming it was lawful, which of course he does not accept), the governing body would have been quite entitled for 14 days to do nothing and then to indicate on the final day engagement and/or communication or a willingness to comply, and that would constitute compliance. He further submits that the 15 day period may not be used by the local authority to assess the actions of the governing body. I do not accept either of those submissions. They ignore both the language and the spirit of the statute. It cannot reasonably be argued that the failure to inform the local authority of compliance with 1 and 2 at the time they were taken (as a minimum) is other than a failure of communication. In my judgment, the local authority were entitled to take that into account when considering as a whole compliance with the third requirement during the 15 day period, which it duly did.

Mr Sheldon submits that the claimants’ position amounts to an assertion that the Council's decision that the claimant had not complied was irrational in the Wednesbury sense. Mr Greatorex does not demur from that, he simply and firmly submits that the defendant was irrational in this regard. Mr Sheldon submits that the statutory scheme uses the language of "to the satisfaction of the local authority" and here there were a number of good reasons as to why the Council was not satisfied. Those are set out in detail in the decision letter of 18 September, to which I have already referred. I accept this submission. This ground is not made out.

Ground 4 is suspension of the delegated budget. Mr Greatorex submits that this was unlawful. He reminds me that section 60(1)(e) requires as a statutory precondition to a school becoming eligible for intervention and the defendant having the powers in sections 63 to 66 that the defendant has "given reasonable notice in writing to the governing body that they propose to exercise their powers under any one or more of sections 63 to 66. He says that the defendant gave the claimant only 1 hour and 45 minutes' notice, which is plainly not reasonable notice. He says that any reliance by the defendant on the reference to this possibility having been mentioned earlier in the warning notice is misplaced. He points to the difference in the language between the reasonable notice "that they propose to exercise their powers", which he contrasts with action which the local authority are "minded to take" under one or more of sections 63 to 66. He says that the separate requirement has the sensible and separate purpose of avoiding a local authority exercising its intervention power at the same time as it informs a governing body that there has been a non-compliance, making it impossible, he says, for any orderly preparation or any sort of complaint or challenge.

In my judgment, once the compliance period had expired there was, in this case, no good reason for delay. That, of course, is not the test but I observe that the statutory framework already builds into the timetable a purposeful delay in the appeal provision. By September 2013 the governing body had been on notice for over 2 months of the nature of the proposed intervention. The letter of 11 September 2013 leaves no room for doubt in that regard. It contained a very clear warning as to what the local authority would do in the absence of compliance by 17 September 2013. In my judgment, that plainly constituted reasonable notice in this case. In fact, the governing body were able to make their application for interim relief extremely quickly. There is nothing in this ground.

I turn then to ground 5: That the suspension of the headteacher was unlawful. Mr Greatorex reminds me at paragraph 42 of his skeleton argument:

In my judgment, it is a clear and unambiguous promise to seek to engage. As a matter of fact, there was no attempt to engage. It is not apparent on the evidence that there was any attempt to seek to engage. There should have been, not just as a matter of law but as a matter of fairness, particularly in the context of the complaints made by the local authority about the governing body's failure to engage. Even if I am wrong about whether this was binding in public law on the local authority, it was plainly an indication that the local authority would seek to work with the governing body on matters relevant to the school. The suspension of the headteacher plainly was such a matter. In light of that finding I have read and re-read the correspondence and the notes of meetings about the suspension of the headteacher. I am driven to conclude that it was plain beyond peradventure that the local authority considered that he should be suspended for reasons which any reasonable person could understand. I emphasise I make no observation at all about the disciplinary proceedings in respect of the headteacher or the staff, I know nothing about any of them but so far as suspension of the headteacher was concerned this was plainly an inevitable step. It is inconceivable that any attempt to engage with the governing body on that issue would have led to a different outcome. It is only because I regard that there was no likelihood of a different outcome that I take the unusual course of concluding that the promised engagement, or seeking to engage, would have made no difference. I therefore make no order arising from my finding on this ground.

Accordingly, save to the extent that I have identified, this claim is dismissed.